R v Tui

[2018] NSWSC 1619

Supreme Court

New South Wales

Medium Neutral Citation:	R v Tui [2018] NSWSC 1619
Hearing dates:	15 October – 17 October 2018, 19 October 2018, 22 October 2018
Date of orders:	25 October 2018
Decision date:	25 October 2018
Jurisdiction:	Common Law
Before:	Wilson J
Decision:	1. Pursuant to s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW), a special verdict of not guilty of the charge of murder by reason of mental illness is returned. 2. Pursuant to s 39 of the Mental Health (Forensic Provisions) Act 1990 (NSW), James Vaa Tui is to be detained in a correctional facility or at such other place as determined by the Mental Health Review Tribunal until released by due process of law. 3. I direct that the Registrar notify the Minister for Health of these orders. 4. I direct that the Registrar notify the Mental Health Review Tribunal of my verdict and of these orders. I also direct that the Registrar provide the Tribunal with a copy of these reasons and my orders and a copy of exhibits S, T, Y, Z, AC, 2, 3, and 6, tendered during the special hearing.
Catchwords:	CRIMINAL LAW – murder – trial by judge alone – defence of mental illness – relevance of evidence of planning – special verdict
Legislation Cited:	Crimes Act 1900 (NSW) Criminal Procedure Act 1986 (NSW) Evidence Act 1995 (NSW) Evidence (Audio and Audio Visual Links) Act 1998 (NSW) Mental Health (Criminal Procedure) Act 1990 (NSW) Mental Health (Forensic Provisions) Act 1990 (NSW)
Cases Cited:	R v James Va’a Tui [2017] NSWSC 1366 R v M’Naghten (1843) 8 ER 718 Stapleton v The Queen (1952) 86 CLR 358 The Queen v Falconer (1990) 171 CLR 30
Category:	Principal judgment
Parties:	Regina James Va’a Tui
Representation:	Counsel: Mr G. Tabuteau – Crown Ms S. Beckett – Accused   Solicitors: Solicitor for Public Prosecutions Ms A. Coultas-Roberts – Accused
File Number(s):	2016/00215503
Publication restriction:	None

Judgment

HER HONOUR:

The Background to the Special Hearing

1. On 16 July 2016, the accused was arrested and charged with the murder that day of Faatalatala Faalav, at Shalvey.

2. On 22 September 2017 the accused was found unfit to be tried for that charge by Lonergan J, and was detained, pursuant to s 14(b)(iii) of the Mental Health (Forensic Provisions) Act 1990 (NSW) (“the Act”): R v James Va’a Tui [2017] NSWSC 1366. The matter was referred to the Mental Health Review Tribunal (“MHRT” or “the Tribunal”) to determine whether he would become fit within the period of twelve months.

3. On 10 May 2018 the Tribunal found, pursuant to s 16(1) of the Act, that the accused was unfit to be tried. The Tribunal concluded that the accused would not become fit to be tried in the 12 month period that ends on 22 September 2018. An order was made detaining the accused at the Metropolitan Remand and Reception Centre.

4. The Tribunal advised the Court and the Director of Public Prosecutions of its opinion and determination.

5. The Crown having decided to proceed against the accused, the Court listed the matter for special hearing in accordance with s 19(1) of the Act. In opening their respective cases to the Court at the commencement of the special hearing counsel for the Crown and counsel for the accused both indicated that the principal issue for the determination of the Court would be the question of the availability to the accused of the defence of mental illness. It is the submission of the accused’s counsel that the appropriate verdict is one of not guilty by reason of mental illness; the Crown argues that, whilst it cannot be said that the defence is not available on the evidence, the Court should find that the accused was substantially impaired at the time of the alleged offence, and should determine that the accused is guilty of the alternative charge of manslaughter on the limited evidence available.

The Special Hearing - the Law

6. The purpose of a special hearing is set out in s 19(2) of the Act, which provides:

(2) A special hearing is a hearing for the purpose of ensuring, despite the unfitness of the person to be tried in accordance with the normal procedures, that the person is acquitted unless it can be proved to the requisite criminal standard of proof that, on the limited evidence available, the person committed the offence charged or any other offence available as an alternative to the offence charged.

7. Such a hearing is to be conducted as nearly as possible as a trial (s 21(1)). To that end, the accused person must be legally represented (s 21(2)), and the accused has been represented before this Court by counsel. Pursuant to s 21A, a special hearing is to proceed before a judge sitting alone, unless an election is made by the accused, his or her representative, or the prosecutor. No election having been made, the hearing proceeded before me sitting without a jury.

8. Although an accused person cannot him or herself enter a plea to the charge at a special hearing, s 21(3)(a) provides that an accused is taken to have entered a plea of not guilty, and that plea was entered by the Court on the accused’s behalf when the accused was arraigned on 15 October 2018 on a charge that he,

on 16 July 2016, at Shalvey, in the State of New South Wales did murder Faatalatala Faalava.

9. Later in the proceedings the indictment was amended (to aver the relevant date as “between 15 July 2016 and 23 July 2016”), as permitted by s 22A of the Act, and by s 20 of the Criminal Procedure Act 1986 (NSW). The offence of murder is one contrary to s 18(1)(a) of the Crimes Act 1900 (NSW).

10. Following the accused’s arraignment, the matter proceeded to special hearing.

11. Section 21B of the Act provides that a judge determining a special hearing without a jury has available to him or her verdicts which would be available to a jury pursuant to s 22. Those verdicts are set out in s 22(1), which is in these terms:

(1) The verdicts available to the jury or the Court at a special hearing include the following:

(a) not guilty of the offence charged,

(b) not guilty on the ground of mental illness,

(c) that on the limited evidence available, the accused person committed the offence charged,

(d) that on the limited evidence available, the accused person committed an offence available as an alternative to the offence charged.

12. The verdict entered by a judge has the same effect as a verdict of a jury: s 21B(1).

13. Where the verdict is one of not guilty on the ground of mental illness, it is to be taken to be equivalent for all purposes to a special verdict that an accused person is not guilty by reason of mental illness pursuant to s 38(1) of the Act (“special verdict”).

14. A special verdict of not guilty by reason of mental illness is to be returned in circumstances where, although the Crown has proved to the criminal standard of beyond reasonable doubt that the accused voluntarily committed the act, the accused was mentally ill at the time of its commission. Section 21(3)(c) of the Act provides:

“without limiting the generality of subsection (1), the accused person may raise any defence that could be properly raised if the special hearing were an ordinary trial of criminal proceedings”.

15. The defence of mental illness has been squarely raised in these proceedings.

16. The standard of proof for what is commonly referred to as “the defence of mental illness” or “the M’Naghten defence” is on the balance of probabilities. Where the accused raises that defence, the onus is on him or her to prove it to the lower civil standard: The Queen v Falconer (1990) 171 CLR 30 (per Mason CJ, Brennan and McHugh JJ at 41-43, per Deane and Dawson JJ at 61).

17. Pursuant to s 21B(2) of the Act, a determination by a judge in a special hearing must include the principles of law applied and the findings of fact relied upon.

The Special Hearing – The Evidence

The Crown Case with Respect to the Charge of Murder

18. The accused and Faatalatala Faalava were related by marriage, the accused being maternal cousin to the deceased’s wife and, by adoption, her brother. The relationship was friendly, although the evidence is that neither Mr nor Mrs Faalava had seen the accused for some seven or eight years prior to 16 July 2016.

19. On the evening of 14 July 2016 the accused told his wife, Amanda Tui, that he was leaving her and the couple’s young son, and would go the following morning. Although Mrs Tui was uncertain about it in her evidence to the Court, it appears that, after packing some bags, the accused slept that night in his car, rather than in the family home. The next morning, he drove away in his blue Kia Sportage, with some items of clothing and a television set, after telling his wife “you don’t kiss me anymore”.

20. During the course of that day, 15 July 2016, the accused contacted his sister, Margaret Ailao-Tui, by telephone. Prior to that day, the accused had not seen Ms Ailao-Tui since a family birthday celebration in 2009 or 2010. He told his sister that he had left his wife, as he believed that she had had an affair. He said that their relationship was over, and he needed a place to stay until he could get back on his feet. Ms Ailao-Tui offered him a home with her and her family at Quakers Hill.

21. At around midnight on 15 July 2016 Ms Ailao-Tui spoke with the accused again over the telephone, and subsequently exchanged a series of text messages with him. Ms Ailao-Tui urged her brother to come immediately to her home, but he said he would come the following morning. He said that he was sleeping in his car and was comfortable.

22. At around 9am on Saturday 16 July 2016, the accused arrived at Ms Ailao-Tui’s home. He unloaded some bags and a television, and left almost immediately. He appeared to his sister to be in a rush.

23. Ms Ailao-Tui spoke to the accused soon after by telephone, and he said that he was at Mt Druitt looking in shop windows. In a telephone call a little later the accused asked Ms Ailao-Tui if she had put his clothes away. When she replied that he was old enough to do that for himself, he became angry. The call ended soon after, although not before Ms Ailao-Tui had heard the accused asking people in the street to give him fifty cents.

24. Mrs Ailao-Tui telephoned the accused fifteen or twenty minutes later to ask him why he was opportuning people in the street for money. He told her that he gave money to people, and people should give money back to him. The call was ended.

25. The next certain sighting of the accused was in Westward Avenue at Shalvey on the afternoon of Saturday, 16 July 2016.

26. Over a period of some months the deceased, Mr Faalava, had been working on the fence at the front of his property at 50 Westward Avenue, Shalvey, replacing a wire cyclone fence with a fence of rendered brick. He was seen by a Westward Avenue neighbour, Fangafua Fakahau, at the front of his property doing some work to the fence at about 2.10pm on 16 July 2016. Mr Faalava was on the footpath, facing the fence and his property.

27. At a time recorded as 2:10:46pm, the accused’s blue Kia Sportage was filmed by closed circuit television (“CCTV”) security cameras that were in operation at a house on the opposite side of the road to 50 Westward Avenue, to drive along the street in the direction of number 50. Ms Fakahau saw the car drive past her home at about the same time, and watched as the car moved to the incorrect side of the roadway, and then off the roadway and directly into Mr Faalava, as he worked on his front fence. The car, which had initially been observed to travel at about the speed limit, increased its speed as it approached number 50, accelerating as it mounted the kerb and was steered at Mr Faalava. The brake lights of the car were not illuminated at any stage.

28. Ms Fakahau watched as the car struck Mr Faalava head on, mounting the brick fence and crumpling it as it came to rest, scattering bricks and chunks of bricks and other debris into the front yard of 50 Westward Avenue, and out onto the footpath. She saw the driver immediately exit the car and approach Mr Faalava, who had been thrown westwards of the car, and was lying on his back on the footpath. The driver picked up a section of bricks from the wall and, lifting the mass to head height, struck down with considerable force onto Mr Faalava’s head. The sound of the impact was heard by Ms Fakahau some 20 or 30 metres away. As she watched, she saw the driver repeatedly raise the brick mass to head height, and slam it down into Mr Faalava’s head. From time to time the driver lost his grip on the mass of bricks, and it slipped from his hands. He took up other pieces of the broken brick wall and used them in the same manner. A number of forceful blows were struck.

29. As the driver struck these blows he could be heard shouting at Mr Faalava.

30. Katherine Wilson lived in a nearby street to Westward Avenue, with a view from her front driveway towards number 50 Westward Avenue. As she stood in her driveway putting some bags in her car, she saw a blue car that she thought was trying to park in front of number 50. She then observed it to accelerate such that it “suddenly lunged forward”, striking the brick wall at number 50 and mounting it. A man who had been near the wall went backwards, landing on the footpath on his back.

31. Ms Wilson saw that the driver’s door was open and watched as the driver ran to the man on the ground, she thought, to help him. Instead, he picked up “a boulder”, being two or three bricks still mortared together, and threw the object from head height down onto the prone male, possibly striking his head. The man on the ground had raised his arms in a protective gesture before he was struck. Ms Wilson ran into her house for her telephone to call for help. When she looked back she saw the male repeatedly striking the prone man with bricks.

32. Kareen Norris lived at a Westward Avenue property that was diagonally opposite number 50 (and which was fitted with the CCTV cameras already referred to). She had been at home that day, having lunch with friends, Melinda Parsons and Tina Melton, when she heard a loud bang. Going outside, Ms Norris saw that a small blue four-wheel drive had crashed into her neighbour’s fence. As she approached the scene she saw an islander male standing over her neighbour, whom she knew as Fata, striking him to the head with a brick as he lay on the ground. The islander male was saying something, but in a foreign language. She rushed to the men, yelling at the islander male to stop. Grabbing the islander male by his jumper she dragged him back from her neighbour. In an attempt to assist Mr Faalava to breathe, she rolled him onto his side. She stayed with him, giving such aid to him as she could, until police officers arrived.

33. Running outside with Ms Norris and Ms Melton after hearing the bang, Melinda Parsons saw a blue van that had crashed into the fence of number 50. She saw a man standing over another man, who was on the ground, and watched as the first man used a brick to strike down at the man on the ground, repeatedly, and with a “fair bit of force”. She rang the emergency services, whilst her friends rushed to intervene.

34. Tina Melton had also heard the loud bang of the Kia colliding with Mr Faalava’s brick wall, and the sound of a car horn sounding continuously. Running with her friends Ms Norris and Ms Parsons, Ms Melton ran out onto Westward Avenue. She saw that a male of Pacific Islander appearance was striking a man she had earlier seen doing some work on the wall at number 50. She heard the man yelling,

You motherfucking cunt, I’m gunna fucking kill you. You fucked my daughter, you fucked my wife.

35. Ms Melton yelled at the male to stop, but he continued to strike the man on the ground without pause. Ms Melton could see that the islander male had a piece of brick in his hand, and was using it as a weapon to “hammer” the male on the ground. She noticed him change the brick he held for a larger piece of brick at one point, and use it to continue to strike the male. Ms Melton saw in excess of six blows landed.

36. After the intervention of Ms Norris, the man stopped hitting Mr Faalava and went to his car, yelling “I’m gunna stab you you fuckin’ cunt”.

37. He reached into his car saying, “I’ve got a knife. I want the knife”. When Ms Melton told him no, he said, “I want to stab him; he deserves it”.

38. He then produced a silver bladder, apparently the innards of a wine cask, and said,

I’m gunna kill him, he fucked my sister, he fucked my daughter. I don’t care. I’m gunna kill him.

39. Announcing that he was “going”, the male began to move off east along Westward Avenue. Ms Melton stood in his way, preventing him from leaving. Although he abused her, she stood her ground and, taking him by his collar, walked him across the road. When she encouraged him to talk to her in the hope he would calm down, he told her his name was James, and repeated his assertions about what Mr Faalava had done to his daughter. He added that he and Mr Faalava had had a fight the previous day, and what he had done had been in retaliation for Mr Faalava’s act in pulling a knife on him. At some stage he told Ms Melton that he “needed to pee”.

40. Ms Melton observed the male to be agitated and a bit upset, but thought that he calmed down once she had engaged him in conversation. A police officer arrived soon after and took the accused in hand.

41. Alo Meleisea, a resident of the area, also heard the crash and came out to see what had happened. She thought the driver seemed “angry”, and he appeared intoxicated. She observed that his eyes were red. Another witness thought that the driver’s eyes were bulging, and it looked as if he had been using “ice”.

42. A visitor to the area, Paul Oyston, heard the sound of a car crash and ran to help. He saw an islander male in the vicinity of a car that had mounted a fence, and observed him to be stumbling and dishevelled. The male picked up a group of two or three bricks that were mortared together and “slammed the bricks down” onto the head of another male who was lying on the ground. The male was mumbling, but Mr Oyston could not make out the words, as the speaker was incoherent. The male picked up bricks from the debris and “pelted” the second male with them. The male on the ground initially tried to protect himself, but went limp soon after.

43. After Ms Norris had intervened, Mr Oyston assisted her in trying to give Mr Faalava, who was severely injured, first aid. Police arrived soon after, followed by ambulance personnel.

44. Leading Senior Constable Steven Wade responded to an urgent call to attend an accident scene at 2:10pm that day. He made his way to Westward Avenue, activating an in-car audio-visual recording system as he approached. He saw the crash scene and Mr Faalava on the ground being assisted by neighbours. He was directed to a male, the accused, who was standing across the road with Ms Melton. The officer initially directed the accused to get on the ground, before getting some basic information from him, under caution. The accused said that the blue Kia was his, and he admitted to having deliberately run Mr Faalava down. He asked to be taken to Silverwater gaol, and muttered other comments that L/S/C Wade could not understand. When he was asked “did you crack this guy over the head with a brick”, he responded “yeah, about ten times”. He told the officer that he was happy as he had “done someone”, that having been his “plan” for “three years”. The accused was arrested.

45. The in-car footage (Ex. E) shows the accused laughing at times, dancing about, and making odd grimaces with his mouth and face. Constable Jason Haynes, who assisted L/S/C Wade heard the accused singing.

46. The accused was taken to Mt Druitt hospital for mandatory blood and urine tests. Whilst at the hospital his behaviour was observed to change rapidly between calm and aggressive and, at one point, he became physically aggressive with the police officers who were escorting him.

47. Analysis of the samples taken from the accused (Ex. J) revealed that he had no alcohol content in his blood. A trace of Delta-9-THC-acid (less than 0.002 milligrams per litre) was detected but, at that quantity, cannabis must have been consumed in excess of 24 hours before the sample was obtained, and would have had no impact upon behaviour. Clozapine in a less than therapeutic amount of 0.12 milligrams per litre was detected.

39. After forensic samples were obtained the accused was taken to Mt Druitt Police Station, where he was interviewed. The recording of the interview is in evidence as Ex. S. During the interview the accused appeared to have considerable difficulty in focussing on the process. He frequently spoke loudly and often over the top of Detective Senior Constable Ari Barr, who was endeavouring to question him. From time to time he gesticulated wildly with his hands, or laughed inappropriately.

40. When asked about what had happened that day, the accused spoke of being “in a mess” and began to give a lengthy history, commencing with his first meeting with his wife over a decade before, and going on to an excessively detailed account of his wife’s subsequent pregnancy. He told the officer that “me and Mandy mess up”, and referred to hearing voices in his ear. He went on to give considerable unsolicited information about his family background. When asked how Mr Faalava fitted into things, the accused said,

How all is, is fitting into this, he fitted into this three years. Yes. Yes. Faatalatala is a good man and he’s a bad man too, I can say too, yes.

50. He spoke of his family betraying him and, thumping the table at which he sat with some violence, of voices.

I’m hearing their voices, they want, they want money. That’s what they hear. I say “What?” Do the right thing [indecipherable] if you people took to Australia, not just come some-some here, some-some here. No, Australia needs, yeah, Australia needs […] OK? I got, I got in the car. I’m hearing voices, “Go kill someone, go kill someone”. Yes. But today I didn’t drink at all. Yes. Or last night or yesterday. Yes. Me got angry at Dr Au down here […].

51. After giving an angry account of an attendance that morning on a general practitioner, Dr Au (to which I shall return) he continued with a highly disjointed and largely insensible narrative, saying

Let me, yeah, yeah, let me, yeah, let me going on, because it’s a story, yes, I like to tell the true story, not to [indecipherable] mess the story. Yes. Right. Right now, I got in the car, I drove on. People, “Go kill somebody, go kill him. We give everything, ah, you, we give you.” That’s what Australian, yes. Don’t deny that. This is a story here that you see. Yes. OK.

52. The accused told the police officers that he had seen Dr Au that morning because he wanted help to “get off” the medication he was prescribed, being Clozapine. He said that he had not taken his medication for two nights. He went on to speak, largely tangentially, of rape, computers, money, noises, people fitting inside his head, wanting to be a good man, being unhappy, and concluding “I’m here, yes, I’m here because I killed somebody”.

53. When Det. Barr tried to have the accused return to the events of that afternoon, the accused said,

What happened now is, the reason now that Faatalatala is passed away, because of the people wouldn’t leave me alone. And this medication wouldn’t leave me alone.

54. The accused spoke about medication, a pharmacy, and of doctors knowing nothing, before saying,

Clear, end story. I need to go home. But Faatalatala, it’s his fault, it’s the people’s fault.

55. Later, with many odd facial movements and strange contortions of his mouth, the accused said,

What did I do then? Me I took time, whether I am going to be, ah, ah, ah, blame me for murder that Australia and people tell me to do it. Yes. So Australia virtually say to me, “Do it. You kill it.” I already, I already let you know that.

56. When asked for detail of what he had done, the accused responded,

I just put the Kia on fast, and I saw the man, Faatalatala, well, with a scraper, with a concrete cement, with a cement, I come from where? Easy. So we show you that there, how it is. So Faatalatala was there, and me put the key on, on the key, yeah, or clutch, with a clutch here, and accelerated here. I went zoom, I hit the man and went down. Yes. And me, the bum, back, the bar mix me up because of the medication here. It’s very strong here. OK? And the doctor of Australia has to be, go somewhere. Yes. If you think it, if you think it’s all right, they not right. Yeah. OK? So [in a whisper] look, lot of blood here. So the story, I kill him and punch him, fallen bricks on his head, die, and I walk away, and I see nothing.

[…]

Well, to compare the word, I saw him, my car went up, broke in the wall. And Faatalatala down. I open up my car, I came out, because the people, Australia told me to kill him. And that was the end of my story today. Yes. And I would like to verify to the people that see this story, this story is, is a small story for Faatalatala’s life. Yes. It’s not an important man, and it’s not, it’s a bummer. I’m sorry.

57. After the completion of the interview (which continued over many more questions and answers), other officers spoke with the accused to conduct a number of forensic procedures. The recording of that process is in evidence as Exhibit Y.

58. Although not without difficulty, forensic procedures, including the taking of photographs, were eventually completed. The process was much drawn out, however, by the accused’s initial aggressive refusal to participate, and then by his less belligerent, but equally bizarre conduct as the procedures were carried out. When a police officer attempted to photograph the accused, he posed for the camera, adopting the sort of pose that might be seen on an individual seeking to display heavily muscled torso and arms at a competition. The accused had completely lowered the zip on the forensic suit in which he was dressed, apparently entirely unconcerned that he had exposed himself. He explained this as done so that the camera could capture any injuries, although he had no such injuries to his chest or genital area.

59. When seated in the dock of the police station awaiting charging procedures, the accused was seen to have a conversation with a person not present, and was heard at one point to say, apparently to himself,

I’m in here for deep shit. I fucked him up. I killed a fucking cunt today, I ran him over.

60. At Westward Avenue, ambulance officers who had been called to attend the crash scene at 2:07pm that day arrived, and took over the care of Mr Faalava. Attempts were made to stabilise him at the scene, with a CareFlight team attending upon him by helicopter. Dr Joshua Holden examined Mr Faalava at 2:45pm, noting him to be comatose with four boggy haematomas to his head. He thought that Mr Faalava showed signs of significantly raised intracranial pressure, representing a severe and likely unsurvivable brain injury. The patient could not maintain his own airway. Mr Faalava was placed in an induced coma, and transferred by road to Westmead Hospital.

61. On arrival at Westmead, CT scans were performed, revealing a significant depressed compound comminuted fracture of the left skull with associated left temporal lobe bleeding, subarachnoid haemorrhages to both sides of the head, right subdural bleeding, generalised cerebral swelling, and a significant shift of the brain to the left. Some of the facial bones were fractured. Neurosurgical experts regarded the injuries as unsurvivable.

62. Mr Faalava’s condition deteriorated over the ensuing days, with brain death occurring on 22 July 2016. He was declared dead that day.

63. A post-mortem examination on Mr Faalava’s body conducted by Dr Kendall Bailey on 25 July 2016 confirmed that he died from complications of blunt force head injury.

64. Although I will return to matters of law later, there can be no doubt on the evidence before the Court that Faatalatala Faalava died on 22 July 2016 as a direct consequence of the accused’s attack upon him, using both a car and bricks as weapons, on the afternoon of 16 July 2016.

Evidence which could go to Planning

65. There was an issue during the course of the special hearing as to the admissibility and relevance of evidence of other sightings of a blue car in the area of Westward Avenue that may have been the accused’s vehicle, at times earlier than the fatal incident involving Mr Faalava.

66. The Crown sought to tender this evidence because, it argued, evidence that suggested that the accused had been in the area of the fatal attack for some time prior to it, was indicative of some level of planning, and thus that the accused had had an opportunity to think about what he proposed to do, and time for calm reflection. Such evidence was relevant, in the Crown’s submission, because it went to the availability of the mental illness defence, being supportive of a conclusion that the accused was aware of the nature and quality of his act in killing Mr Faalava, and understood its moral wrongfulness.

67. Ms Beckett for the accused objected to the evidence, asking the Court to exclude it pursuant to s 135 of the Evidence Act 1995 (NSW). Ultimately the Crown was permitted to lead some of the evidence on this issue.

68. Shiraleena Cocker lives in the area of Westward Avenue and was in her front yard at some time between 2pm and 3pm on 16 July 2016. She saw a blue four wheel drive pass her property on Freya Crescent, a street immediately adjacent to Westward Avenue. The car was travelling slowly, at about 5 km per hour, and passed within 5 metres of her. The driver was an islander, male, with black hair with a bit of length to it. Ms Cocker said the driver was about 5’7” tall (although she only saw him sitting in the moving car at this point). The car was stopped for about 5 seconds at the intersection of Freya Crescent and Westward Avenue, before continuing along Freya Crescent.

69. Some short time later, probably about 15 minutes, Ms Cocker heard tyres screeching and the sound of a crash. She saw that the four wheel drive had run into her neighbour’s front fence, having been driven at her neighbour, whom she knew as Tala. She recognised the vehicle as the same car that had earlier passed her home, and the driver as the same islander male.

70. Troy Anderson is also a resident in the general area of Westward Avenue. At about 1pm he saw a dark blue car leaving Westward Avenue and entering Freya Crescent. It had dark tinted windows and looked like a Japanese four wheel drive. The shape reminded Mr Anderson of a Kia. Shortly afterwards the same car passed Mr Anderson’s house, stopping for a minute or so as the driver looked towards Westward Avenue. He observed the driver to be a skinny male with scruffy hair. The car drove off.

71. A few minutes later Mr Anderson heard the sound of a car crashing. When he ran to the scene he saw the same blue car up on the wall at number 50 Westward Avenue. The driver had the same general description of the man he had earlier seen in the blue car.

72. Mr Anderson made observations of the driver’s actions consistent with those made by other witnesses.

73. Exhibits O, AH and AK are, respectively, still images and footage taken from CCTV in operation in Westward Avenue, and show blue cars passing the two cameras situated across the road from 50 Westwards Avenue. Ex. O depicts the accused’s blue Kia Sportage passing the location at (according to the camera) 14:10. Exhibit AH shows blue cars passing the same location at various times between 15:42 on 15 July 2016, and the passage of the accused’s car at 14:10 on 16 July 2016. Exhibit AK is the footage of the accused’s car.

74. It is clear that there were a number of blue cars that were in the general area of the fatal incident in the day or two before it. The Crown asks the Court to conclude that the observations Ms Cocker and Mr Anderson made of a blue car in the area of Westward Avenue were observations of the accused, and that his presence there, driving slowly, stopping and looking into Westward Avenue, and the like, indicates preparation and planning for the attack upon Mr Faalava, and demonstrates that the accused had both the time and the capacity for reflection. This, it is submitted, tends to rebut that the accused was mentally ill at the time so as to be unaware of the nature and quality of his act, or of its wrongfulness.

75. I am not prepared to accept that the evidence of either witness founds such a proposition.

76. There is firstly an issue with the reliability of the evidence. Both witnesses made their statements after becoming aware of the involvement of a blue car with a driver of islander or maori appearance in the attack upon Mr Faalava. Necessarily, that would tend to lead both witnesses to think about the blue car earlier seen, and potentially to merge them in memory. Although Ms Cocker’s evidence was clear and honestly given, there is a warning as to reliability generally in the evidence she gave concerning the height of the driver she initially saw passing her house. This is an observation that she could only have made of the accused at the scene of the crash; she could not have seen the height of a man seated in a car. Despite that, when describing the first, seated driver, Ms Cocker gave an estimate of height. This suggests that, in memory, she has confused or merged her observations of the first driver, with her observations of the accused. They may be the same person, but I cannot be certain of that.

77. Mr Anderson did not give evidence due to illness, and there was no opportunity for the Court to observe him giving evidence and, importantly, for his evidence to be tested in cross-examination. The Court has only his untested statement as Ex. AG. Insofar as Mr Anderson’s evidence is of an identification (at least of the blue car) it is necessary to bear in mind that such evidence can be unreliable, even from an entirely honest witness. Additionally, in the absence of cross-examination, the evidence has not been subject to the sort of testing and scrutiny that could reveal problems with Mr Anderson’s conclusion. I am not prepared to accept his evidence as establishing that the blue car he saw and the accused’s car were the same.

78. Even if the cars were the same, I do not accept the Crown’s argument that this would be evidence of planning, which would in turn be evidence that the accused understood the nature and quality of his act and its wrongfulness. As both forensic psychiatrists who were called said in evidence (their evidence being evidence to which I will return), the capacity for some planning is not inconsistent with the existence of a mental illness, and does not negate the proposition that the accused did not comprehend the wrongfulness of his act in killing Mr Faalava.

The Evidence Relevant to Mental Illness (and Substantial Impairment)

79. Much of the evidence already summarised, whilst principally significant for what it establishes of the circumstances surrounding the death of Mr Faalava, is also of direct relevance to the question of the accused’s mental state at the time.

80. The observations of the accused by persons at the scene, and the observations of the police officers who dealt with him on arrest, all inform the Court on that question. There is also other evidence.

81. Tendered by Ms Beckett for the accused pursuant to s 50 of the Evidence Act is a schedule, which provides details of the accused’s history of mental illness and treatment. The schedule and supporting documents is Ex. 3. The records of that history commence in May 1998 when the accused was first before a court charged with a serious offence. He was remanded in custody and subsequently examined by Dr Jeremy O’Dea, and diagnosed with schizophrenia. In January 1999, the accused was found unfit to be tried and later appeared in the District Court for a special hearing. In February 2000 he was found guilty of an offence on the limited evidence available, and a limiting term of 5 years was imposed upon him pursuant to s 24 of the Mental Health (Criminal Procedure) Act 1990 (NSW).

82. On release in May 2003, the accused was made subject to a Community Treatment Order pursuant to which he was to accept medical treatment and accept medication. By August of that year his condition was such that he was admitted to a mental health unit, under a schedule. He was noted to have a probable diagnosis of chronic schizophrenia and to be non-compliant with medication (Clozapine). He remained hospitalised until November 2003.

83. In February 2004 the accused was again scheduled, and hospitalised at Cumberland Hospital, where he remained until March. His history thereafter until late 2007 is one of frequent admissions to psychiatric facilities for treatment: from June to August 2004; from November 2004 to February 2005; from March to June 2005; from August to December 2005; and from February to December 2007. In those periods when the accused was in the community, he was ordinarily subject to orders for mandatory community based treatment.

84. After his move to the Central Coast around 2010 the accused became a regular attendant at Gosford and Wyong Clozapine Clinics. He attended for his medication once or twice a month throughout 2010 and 2011. Over that period there were some reductions in the Clozapine dosage, it appears at the urging of the accused, with records from 15 December 2011 suggesting that the dose should not fall below 300 milligrams per day. During his attendance at the clinic in 2013 however, there was a further reduction, perhaps in part because of concerns about the accused’s liver function.

85. In January and February 2014 the accused was admitted to Gosford Mental Health Unit as a mentally ill person. He was believed to be non-compliant with medication. On discharge, with an increased dose of Clozapine prescribed, the accused resumed his regular attendances at the local Clozapine Clinic. There was a later reduction in Clozapine, from 450mg to 375mg, with records noting the accused had a history of decompensating behaviour at lower doses. There were, however, later reductions, with the daily dose at 250mg by January 2016. His last review at a Clozapine Clinic was 21 June 2016 when he was noted to be “insightless into illness or need for medication”. The accused denied having a mental illness, and spoke of some $95,000 (which the evidence is he never had) having been stolen from him.

86. The accused sought a further review on 11 July 2016 at Wyong Hospital, but no doctor was available to see him.

87. Amanda Tui is the accused’s wife and mother to the couple’s young son. She gave evidence via an audio-visual link from Gosford Court House, pursuant to an order under s 5B(1) of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW). This feature of her evidence is of no further significance, in that evidence taken by this means is to be assessed in the same way as if given in the court room, and is not to be given any greater or lesser weight due to its method of delivery.

88. Mrs Tui gave the Court some background information as to her meeting with and marriage to the accused, the birth of their son, and of their living arrangements over the years. She said that, in the time she had known him, the accused had been admitted on a number of occasions to psychiatric hospitals, and she understood him to have paranoid schizophrenia. She noted that when the accused took his medication as prescribed, he was “normal”, and she could tell when he had not taken it. It was her husband’s practice to go to a Clozapine Clinic in the local area for his medication, and Mrs Tui often accompanied him. She was aware that he wanted to reduce the level of Clozapine that he took, and said that her husband did not believe that he was ill.

89. Mrs Tui said that her husband did not manage his own affairs, but was under the supervision of the Protective Office. His funds were very limited, and he had no access to large sums of money.

90. In the six months or so before the incident, Mrs Tui regarded her husband’s mental health as “up and down” although, overall, she described it as “disturbed”. She observed him to draw lines on paper, describing the lines as poems, or connecting them with him being a computer. He had conversations with “somebody that’s not really there”, and his conduct and gestures were unusual. He also made accusations of “ridiculous stuff”, including wrongly alleging that Mrs Tui had had sexual relations with family members. Although she assured him that his allegations were entirely untrue, he maintained them. There were also incidents in public when he would conduct himself in a bizarre way.

79. On the night of 14 July 2016 the accused told his wife he was leaving her the next day. He also dropped his pants in the kitchen, something he had never done before. The accused spent that night in his car, rather than in the family home. He left the family home on the morning of 15 July 2016, apparently convinced that his wife had been unfaithful. Both Mrs Tui and their son pleaded with him to stay, but he left in his car with some clothing and a television set.

80. William Blake knew the accused and his wife as neighbours, and occasionally socialised with them. He had observed the accused behaving oddly from time to time, talking to someone who wasn’t there. The accused spoke of conversations with a biblical character, whom Mr Blake thought might have been Jonah or Noah. On one occasion, he heard the accused (whom he described as both “drunk” and “stoned” at the time) talking about wanting to “do somebody over”, or kill someone.

81. Alison Sly knew the accused as a patient or customer of the agency for which she worked, Central Coast Primary Care. Ms Sly’s role was to support the accused, and help him in obtaining access to other agencies that might provide him with care and assistance. She saw him regularly in that capacity.

82. Ms Sly saw the accused and his family on 11 July 2016 at a Central Coast soup kitchen, and thought he seemed happy. On 15 July 2016 he telephoned her and said he had left Mandy and was living with his parents. The way that the accused spoke to Ms Sly was unusual, and he did not seem happy. He told her he did not want to work with her anymore. Ms Sly tried to discuss other arrangements that could be made, but the accused did not listen to her. He was rambling, and would not let her speak. Eventually, Ms Sly terminated the call because she thought it was pointless to continue with it.

83. On the morning of 16 July 2016 the accused presented at a medical surgery shortly after 10am to see Dr Clifford Au, a general practitioner whom the accused had not seen for six years. He told Dr Au that he did not like being on Clozapine and wanted to be taken off it. His conversation was noted by Dr Au to be incoherent and disjointed, and his behaviour aggressive. He “rambled” about his liver and heart and said that he needed pen and paper to be able to tell the doctor something. When supplied with that equipment he drew a series of dots that he said represented his heart, liver, and kidneys. He also claimed to have been injected by doctors using rusty needles, which Dr Au thought was paranoid and delusional. The doctor referred him to his treating psychiatrist.

84. I have referred already to the contact the accused made with his sister on 15 July 2016. Ms Ailao-Tui could tell from her brother’s behaviour and manner of speech that he was not taking his medication. Some of the text messages (Ex. 2) she received from him in an exchange when she urged him to come to her home on the night of 15 July 2016, rather than sleep in his car, were strange. In one, at 1:16am on 16 July 2016, he said [as written],

When i sleep hollow god u the my shelter u my love to save me time of sleep of my life i needed u to look after me mom dad sisters brothers and my beautifull family worship to u dear jeovah u are the man for me and 4every ones in my world your my majesty yeah look out for our soul its important to me look around me for my health jesus is my savoir of my living in time wanted when suffer on the cross for me. he die for me he was hurt painful. good bye my trust god my scarify for me alleluia amen.

97. After his arrest and entry into police custody the accused’s behaviour was noted to be unusual, including masturbating when in the dock.

98. His behaviour became more bizarre on being received into the custody of the Department of Corrective Services. On 19 July 2016 for example, he was observed to respond to internal stimuli and to be unable to converse. On 20 July 2016 he was recorded to be “naked, dancing”, unable to be interviewed, and responding to internal stimuli. Two days later he was seen kneeling naked on the floor of his cell, not responding to requests from staff, and giving the appearance of responding to “non-apparent stimuli”. Later that day he was noted to be naked, uncooperative, grossly thought disordered, aggressive and disorganised. There was food all over his cell. He had attempted to assault prison officers.

99. On transfer that day to Westmead Hospital for assessment of his mental health, the accused’s conduct remained bizarre. A meaningful psychiatric assessment was considered impossible although the possibility of delirium connected with abrupt withdrawal from Clozapine was noted. The accused was later scheduled. The accused’s conduct throughout July and August 2016 was consistent with a severe mental illness.

100. In connection with the criminal proceedings, the accused was seen and assessed by forensic psychiatrists Dr Adam Martin (at the request of the Crown), and Dr Jonathon Adams (at the request of the accused’s legal representatives). Both doctors have concluded that the accused was severely mentally ill on 16 July 2016, and continues to be very unwell.

101. The evidence of the two doctors is consistent: each believes that the accused has had long term treatment resistant schizophrenia, and was severely mentally ill at the time of the fatal incident. Whilst both doctors thought the accused would have understood the nature and quality of his actions, each concluded that he was not able to reason as to its moral wrongfulness.

102. Tendered on behalf of the Crown were a number of psychiatric reports prepared by Dr Adam Martin. In preparing his report of 18 September 2018, Dr Martin conducted an interview with the accused on 30 August 2018, and had regard to other relevant documentary material supplied to him.

103. The accused described his mood to Dr Martin as “okay”, however admitted that he still frequently hears voices of a commentary nature. Dr Martin considered that the accused continued to suffer from “various psychotic symptoms”, such as a belief that a microchip had been inserted into his head through which he received messages and heard voices; a belief that the Chinese would send someone to look for, and murder, a person with such a microchip, because this person posed a threat to their country; a belief that he needed to protect himself; a belief that he has special powers; and a belief that he has made famous music and movies and is owed money. The accused reported that he was suspicious of Chinese people and, while his account was “somewhat thought disordered and inarticulate”, that people could read his thoughts through his eyes using computers.

104. When questioned about issues to do with fitness, Dr Martin considered that, overall, the accused was unable to articulate a detailed understanding of the Australian legal process or give satisfactory answers around the concept of challenge.

105. Dr Martin expressed the opinion that the accused continued to present with,

“features of psychosis, manifested by persecutory and bizarre delusions with thought interference and passivity phenomena, and ongoing hallucinosis, despite being prescribed Clozapine in a relatively controlled environment”.

106. He considered that the accused suffers from a form of treatment resistant, chronic schizophrenia, that is unlikely to markedly improve, despite assertive management. He also noted, however, that the accused did appear more settled in his behaviour and was “cooperative and relatively affable”, which was perhaps a consequence of consistent compliance with psychiatric treatment and medication in the absence of substance use.  

107. On the issue of whether the accused has an available defence of mental illness, Dr Martin noted that,

“In my opinion, it is absolutely clear that he has a mental illness which would be seen as a disease of the mind causing defect of reason. His illness is relatively severe and chronic, causing significant impairment and disability…. The alleged offending appears to have been deliberate and intentional and I think it is probable that he understood the nature and quality of his actions... However, in my view, it is highly likely that his ability to appreciate the moral wrongfulness of his actions was severely compromised by being mentally ill… In my view, it is reasonable to speculate that it occurred in the context of delusional thinking and/or in response to auditory hallucinations, while disinhibited, as a direct consequence of his chronically psychotic mental state.”

108. In conclusion, Dr Martin considered that,

“He has the defence of mental illness available to him”.

109. Dr Martin recommended that the accused receive long-term psychiatric hospitalisation in a secure psychiatric facility for assertive management and rehabilitation.

110. In his evidence before the Court Dr Martin said that the accused’s presentation and history were plausible and genuine and he regarded him as a frank historian who was not manufacturing symptoms to obtain a legal advantage. From his review of all of the evidence, he considers the accused to have been severely mentally ill at the time of the alleged offence, with features of severe psychosis including experiencing command hallucinations, in the context of schizophrenia. Although the doctor considers that the accused likely did know the nature and quality of his act, he thinks that his ability to appreciate the moral wrongfulness of his act was severely compromised by his mental illness.

111. As to the issue of planning, and the capacity and opportunity for reflection concerning the moral wrongfulness of the act, particularly in circumstances where the accused later described his act as “murder” and apologised for it, the following evidence was given (at T188):

Q […] If one were to assume that he has spent some time thinking about it and thinking about "whether I'm going to be blamed for a murder", does that suggest that there is at least some time spent thinking about what he was going to do?

A. Yes.

Q. The reference to being "blamed for murder" does that at least to some extent allow for the possibility that he was aware of at least some moral, some wrongfulness about what he was going to do?

A. Yes.

Q. Is that suggested by perhaps his use of the word "blame" and the word "murder"?

A. Yes.

Q. Where a person has at least an impaired capacity to know right from wrong is thinking or taking the time to think about what the person might do next does that allow scope for reflection about moral wrongfulness?

A. It does, but, I mean, it doesn't discount the possibility or the unlikelihood that his thought processes are still illogical and, you know, I think he was displaying some ambivalence about his actions. As I said, I think it is very clear that it was intentional and his motivation was probably anger. But I think that was all in the context of very distorted thinking driven by the delusions and hallucinations. I think that significantly colours his ability to understand the wrongfulness.

But at one level, yes, I think he knows that, you know, he's aware that he is in trouble with the law. It is reasonable to speculate while he was waiting that he might have been weighing that up, who knows. But I think this is in a context of a very, very disturbed mind where he really would have struggled to know right from wrong.

112. Later in his evidence, Dr Martin deposed (at T200):

[…] there's a wealth of information showing that he's had a chronic mental illness which has probably fluctuated, but it has, nevertheless, been ongoing since 1998 and with impaired insight and disorganised behaviour and aggression and reports of hallucinations, delusions and severe disordered thought and that is in the time leading up to the offending.

The offending itself appears, while there may be, on a superficial level, some logic, in the sense that it was done ‑ it was a deliberate act done in the context of anger, the anger, I think, was highly likely to have been mediated by his delusions and hallucinations and generally he was ‑ he had ‑ would have ‑ I'm a hundred per cent sure he would have had great difficulty moderating his behaviour and controlling his actions. And immediately afterwards, there's multiple ‑ there's lots of evidence, objective evidence, to show that he was very grossly mentally ill and it is not just him saying that he was hearing voices, which he can't really give a logical account of his actions.

And his behaviour, during the forensic procedures or his behaviour during the police interview, to my mind, is clearly objective evidence of him being mentally ill around that time and, again, I think he's ‑ you know, he's assessed fairly soon in custody, by experienced psychiatrists who note that he's very disorganised and behaving very strangely in itself. So, I don't think there's ‑ I have no doubt that he was very mentally ill at the time and, in my view, that that was closely associated with the offending.

113. Dr Adams, called for the accused, was in broad agreement with Dr Martin.

114. In preparing his various reports, Dr Adams conducted two interviews with the accused, on 3 January 2017 and 13 September 2018, and also had regard to other documentary evidence supplied to him.

115. Dr Adams considered that while the accused’s clinical presentation appeared to have improved somewhat since his previous review, he continued to suffer from symptoms of schizophrenia including hearing voices and experiencing disordered thought, and appeared to have impaired concentration and limited insight into his offending conduct. The accused volunteered a belief that he had a microchip implanted in his brain, linked to his reproductive capacity and an ability to “make clones”. He also mentioned that he was receiving messages from the television, and a concern that fellow inmates could read his mind.

116. In relation to the availability of a psychiatric defence to the accused, Dr Adams opined that,

“There are reasonable grounds to conclude that [the accused] was experiencing symptoms of schizophrenia immediately prior to the alleged offence, at the material time of the alleged offence, and immediately after the alleged offence” [and that therefore,]

“there are reasonable grounds to suggest that [the accused] was suffering from a ‘disease of the mind’ at the material time of the alleged murder… and endured a ‘defect of reason’ at the material time.”

117. He further opined that,

“it is reasonable to suggest that [the accused] generally understood the nature and quality of the alleged offending behaviour at the material time. However, given the severity of his symptoms of schizophrenia… he would have been deprived of the necessary capacity to fully understand the moral wrongfulness of the alleged behaviour,”

118. and consequently,

“has the defence of not guilty by reason of mental illness available to him”.

119. Dr Adams noted his recommendation that the accused receive assertive, continuing psychiatric treatment and follow-up.

120. In his oral evidence, and after having had the opportunity to review further material as to the accused’s history, and his presentation around the time of the incident, Dr Adams considered the cessation of Clozapine by the accused to have had a significant impact upon the accused’s already degraded mental state. He said (at T206-207):

Abruptly stopping Clozapine can lead to a severe deterioration of your mental health, what is known as a rebound Clozapine psychosis, which is something I have mentioned in my report. A rebound psychosis is exactly as the jargon term suggests, it is when you stop Clozapine suddenly you very abruptly enter a psychotic state. More commonly than not that psychotic state or the symptoms of schizophrenia are far worse than they were before you started Clozapine, hence the rebound. You go worse than you were before. It's often accompanied with severe agitation, confusion and disturbed behaviour. My view is that I think it's likely in Mr Tui's case that that is what we were seeing clinically at the material time of the alleged offence and thereafter into his presentation in Justice Health ‑ sorry, when he was incarcerated and he was seen by Justice Health staff they were so concerned that he might have entered a delirium that he was transferred to Westmead Hospital. Based on what we know, my view is the most likely underlying diagnosis of that delirium was the abrupt cessation of Clozapine and that's also mentioned in the notes.

121. On the issue of planning and what it might suggest about the accused’s capacity to appreciate the wrongfulness of his act, the following evidence was given (at T208):

So we are talking about the possible scenario of Mr Tui waiting nearby the scene of the alleged offence. My understanding of the question asked of Dr Martin was, or the inference that waiting nearby, could that suggest planning, thoughts around the behaviour that is about to happen and I believe Dr Martin agreed that that is a possible scenario. I agree it's possible, but what I would certainly add is that, firstly, clearly we are talking about conjecture. We don't know exactly what Mr Tui was thinking at that point in time. We have already discussed about the reliability of his account after the alleged offence, so I won't go into that again. I think there's significant doubts around that, but to understand what he might have been thinking at that point in time, I would certainly look to the bigger picture of what we do know. What we do know is that approximately two hours prior to that he was seeing a general practitioner who clearly documented that he was thought disordered, rambling and paranoid. We do know that. We do know that at the scene of the alleged offence he was said to be muttering and he was clearly seen to be acting in a disorganised fashion. Then when he was interviewed by the police, as I have said in my report, in my view there is clear evidence to say that he was experiencing severe symptoms of schizophrenia. Putting together that timeframe, my clinical opinion would be that it is more likely that his thought processes at that period of time of waiting nearby the scene were disordered, they were disintegrated and they weren't focused upon planning, understanding exactly what is to happen. That would be top of my list of possibilities, again, because we are only talking about conjecture. That would be top of my list of priorities and the concept that he was thinking clearly and planning what he might now do would be far further down the list.

122. Like Dr Martin, Dr Adams concluded that, although the accused may have understood the nature and quality of his act, because of his severe schizophrenia, he was not able to appreciate its wrongfulness. He deposed (at T209 - 210):

In my view, there are reasonable grounds to say that he did not have the capacity to reason with a moderate degree of sense and composure. I say that because of what we know about his mental state. In short, in my view, there's clear evidence to say that we have objective evidence of symptoms of schizophrenia shortly prior, we have evidence of symptoms of schizophrenia immediately afterwards which continued through that day and on into his time in custody. The symptoms of schizophrenia which would impact upon his capacity to reason with a moderate degree of sense and composure are, firstly, his level of thought disorder. So his thought processes are disintegrated. They don't follow a logical train. We have discussed that. In that context, Mr Tui I believe was enduring persecutory delusions. You have heard evidence earlier of the nature of them. He likely believed that the alleged victim had had sexual intercourse with his wife, sister and daughter. We have heard that that is incorrect. So he's thinking about things invested with that incorrect persecutory information. So he is thought disordered. He has this delusional system and, on top of that, as we have just discussed, it is more likely than not that he was experiencing auditory hallucinations. My view is that the combination of those three things would have certainly impaired his capacity for decision‑making, his capacity for understanding the consequences of his behaviour and judgment in general, hence, put them all together, in my view it is reasonable to suggest that, yes, he did not have the requisite capacity to reason with a moderate degree of sense and composure at the material time.

Matters of Law

123. As in any criminal trial, it is the Crown who bears the burden of proving to the criminal standard of beyond reasonable doubt that the accused did the act charged. Setting aside for the moment the question of a mental illness defence, the accused bears no onus of proof with respect to the elements of the offence. That he did not give evidence before this Court is a matter of no significance; he was not obliged to do so, and no conclusion adverse to him can be drawn from that feature of the matter.

124. To prove the offence the Crown must prove beyond reasonable doubt that a deliberate act of the accused caused the death of the deceased and that such act was carried out with an intention to either kill or cause really serious bodily harm. The act in this instance consists of the conduct of running down the deceased with a motor vehicle, and then striking him to the head with bricks.

125. As I indicated earlier, I have concluded that Mr Faalava died on 22 July 2016 as a consequence of complications connected with head injuries sustained when he was struck by the accused on 16 July 2016, at the front of his home in Shalvey. That is, I am satisfied to the requisite standard that the accused did a deliberate act which caused the death of the deceased.

126. The only real issue before this Court is that of the accused’s mental state at the time of the commission of the alleged murder, and it is necessary for the Court to consider whether, at the time of the act the accused was mentally ill so as not to be criminally responsible for his act.

127. Section 38 of the Act is in these terms:

38 Special verdict

(1) If, in an indictment or information, an act or omission is charged against a person as an offence and it is given in evidence on the trial of the person for the offence that the person was mentally ill, so as not to be responsible, according to law, for his or her action at the time when the act was done or omission made, then, if it appears to the jury before which the person is tried that the person did the act or made the omission charged, but was mentally ill at the time when the person did or made the same, the jury must return a special verdict that the accused person is not guilty by reason of mental illness.

(2) If a special verdict of not guilty by reason of mental illness is returned at the trial of a person for an offence, the Court may remand the person in custody until the making of an order under section 39 in respect of the person.

128. The onus of proof of this issue is on the accused, and the standard of proof is on the balance of probabilities. If the accused has established that it is more likely than not that he was mentally ill at the time of the alleged act he is entitled to a verdict of “not guilty by reason of mental illness”.

129. What is required to be shown was set out in R v M’Naghten (1843) 8 ER 718 where the Court said (at 722):

“[The] jurors ought to be told in all cases that every man is to be presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.”

130. To establish that the accused was mentally ill so as not to be responsible according to law for his act, he must show that, as a result of a defect of reason from a disease of the mind, he did not appreciate the nature and quality of his act or, if he did, he did not know that it was wrong.

131. As to knowledge of the wrongfulness of the act, the Court must consider whether the accused could be said to know, in the sense of appreciating or understanding, that his act was wrong, if through a disease, disorder or disturbance of the mind he could not think rationally of the reasons which to ordinary people would make that act right or wrong.

132. If through a disordered condition of the mind the accused could not reason about the matter with a moderate degree of sense and composure, it will be open to the Court to find that the accused did not know that what he was doing was wrong.

133. “Wrong” as referred to in the second limb of the “M’Naghten Rule”s means “wrong” according to “ordinary standards adopted by reasonable people”: Stapleton v The Queen (1952) 86 CLR 358 at 375.

134. I am aware that the consequences of finding the accused not guilty by reason of mental illness are those set out in s 39, and in Division 2 of Part 5 of the Act.

Consideration

135. All of the evidence points to the irresistible conclusion that the accused was suffering from a disease of the mind at the relevant time, being severe and chronic schizophrenia, likely exacerbated by the effects of ceasing to take his medication, that cessation itself being a manifestation of his illness.

136. That conclusion is dictated by the overwhelming weight of the evidence, including the evidence of civilians who saw the accused at the relevant time, and that of both experts, Drs Martin and Adams.

137. There is evidence before the Court that the accused has suffered from a severe form of treatment resistant schizophrenia for at least two decades, and he has a lengthy history of medical intervention consistent with this diagnosis. It is clear from the evidence of those around the accused that, from 2014, the accused became increasingly insightless into his illness, and increasingly resistant to accepting medication. The evidence of those who knew the accused is that his behaviour became increasingly unstable and bizarre in the weeks leading up to the death of Mr Faalava. It is clear that he was increasingly agitated about his use of Clozapine and, having regard to the toxicology evidence, clear that he had not taken his medication for some days prior to 16 July 2016.

138. With that background, he was observed to become more disturbed, with those around him noticing his unusual behaviour and delusional claims. The accused’s wife knew that he was disturbed; the accused's sister quickly understood that he was not taking his medication, because of his presentation to her in what was fairly limited contact over 15 and 16 July 2016. Dr Au recognised that the accused was delusional, rambling and paranoid on the morning of 16 July 2016.

139. The accused suffered delusions connected with his wife’s supposed infidelity, and the loss or theft of large sums of money. His apparent belief, expressed before witnesses to the incident on 16 July 2016 that the deceased had had sexual relations with the accused’s daughter, wife and sister, was utterly unfounded. Indeed, the evidence is that Mrs Tui did not know the Faalava family at all, and there had been no contact between the accused and deceased for something like 7 or 8 years before Mr Faalava’s death. Although the accused has a daughter, he had never had contact with her, and she is (according to her mother) completely unaware of his existence. There could have been no contact between Mr Faalava and the accused’s daughter and, even if there had been, the accused would not have known about it. There could have been no incident between the two men three years before, and no fight between the accused and the deceased the day prior to Mr Faalava’s death.

140. Thus, although the accused expressed a rationale for his acts to people at the scene and to police, all of these claims were demonstrably untrue. There was in truth no cause for the accused to have any motive to wish to kill Mr Faalava and, whilst there is no onus on the Crown to prove motive, it is a significant feature that the accused's expressed motives were the product of delusion with no basis in reality. 

141. That evidence supports the conclusions reached by the expert witnesses, Drs Martin and Adams.

142. Whilst it is open to the Court as the tribunal of fact to reject the evidence of experts, it could only do so if there was a rational basis for that rejection. There is no rational basis to do so in the circumstances of this case.

143. Both doctors were comprehensively briefed, having access to details of the accused's extensive history of psychiatric illness, and to the evidence (in statement form) of persons who had an opportunity to observe the accused before, at the time of, and following the fatal incident. They were able to view the recordings of the interview with detectives, and of the conduct of the forensic procedures. There could be no legitimate suggestion that the opinions formed by the experts were based upon some limited factual basis, or a basis different to my own view of the evidence. 

144. I accept the evidence given by Drs Martin and Adams, and accept the conclusions reached by each concerning the accused's mental state at the time of the fatal incident. 

145. The Crown has pointed to some aspects of the evidence to suggest that the accused had the opportunity for calm reflection, was rational to a degree, and recognised his act as one of murder, with the whole pointing to a conclusion that the accused did understand the moral turpitude of his acts. 

146. The evidence of Ms Cocker and Mr Anderson are relied upon as establishing that there was planning in the commission of the alleged offence, and opportunity for reflection as to the act about to be committed. I have earlier dealt with that evidence, and explained why I do not accept that the evidence provides a basis for that conclusion.

147. The Crown has referred the Court to those parts of the interview between the accused and detectives in which the accused responded to questions correctly and with a degree of comprehension as indicative of rationality inconsistent with the availability of the mental illness defence. The accused was able to give an accurate account of his family circumstances and background, and he recalled and could give the addresses of family members. He remembered Dr Au from having seen him some years before, and sought out his assistance on 16 July 2016.  The accused understood that a pharmacist could provide advice about medication. These answers, submits the Crown, demonstrate a level of understanding that does not sit with the accused’s incapacity to know that his act in killing Mr Faalava was morally wrong.

148. Also pointing to that conclusion in the Crown's submission are those answers given by the accused to questions asked of him by police that suggest he thought about what he was going to do before he did it, and understood his conduct to constitute murder. In his interview the accused told the officers that he went to Shalvey, parking for a time. He said,

What did I do then? I took time. Whether I'm going to be blamed for a murder that Australia and people tell me to do. Yes. So Australia virtually say to me "do it, you kill it". 

149. Later, the accused said that before "putting the Kia on fast" he pulled over and "thought for a while". Later still, he apologised for his act, saying,

Very bad the way that I did him. I'm sorry, you know. It wasn't a murder, it was alright to murder.

150. The accused at one point said that he planned the murder, and had been planning it for three years.

151. It is submitted by the Crown that these answers show that the accused thought about his conduct in advance of it, understood that his actions would be perceived as murder, and understood that his act was morally wrong, such that he should apologise for it. 

152. Whilst the individual answers referred to by the Crown may raise that possibility, in the overall context of the whole of the evidence, I cannot accept the Crown’s submissions.

153. As the psychiatric evidence suggested, there are firstly real issues about the reliability of what the accused told the police. It is by no means certain that the accused in fact took time and thought about his conduct, as his comments suggested. If he did think about his act, it is likely, as Dr Adams deposed, that his thoughts were delusional and chaotic, rather than thoughts in the nature of rational reasoning. Looking at the interview as a whole, the impression is of a man whose thoughts had little connection with reality. 

154. It is also uncertain that the accused regarded his act at the time of it as murder. His use of the word “murder” came after the act, during his interview with police. By that stage, he had been arrested for Mr Faalava's murder, and the connection of the word to the death of Mr Faalava would have been something he had heard when in police custody. That he himself connected his act with murder, or even truly appreciated the wrongfulness of murder, is most unclear. In the context of his disordered and deluded thoughts, it is highly likely that he did not and could not appreciate the wrongfulness of his conduct in accordance with the ordinary standards of reasonable people.

155. Although I accept that the accused probably did know the nature and quality of his act, and deliberately engaged in it, I have concluded that he did not know that it was morally wrong. The defence of mental illness has been established on the balance of probabilities and, accordingly, the only possible verdict on the whole of the evidence is a verdict of not guilty on the ground of mental illness, and that is the verdict that the Court returns.

The Disposition of the Matter

156. Having concluded that Mr Tui is not guilty on the ground of mental illness, the Court must turn to consider the consequential orders to be made, pursuant to s 39 of the Act. Section 39 provides:

39 Effect of finding and declaration of mental illness

(1) If, on the trial of a person charged with an offence, the jury returns a special verdict that the accused person is not guilty by reason of mental illness, the Court may order that the person be detained in such place and in such manner as the Court thinks fit until released by due process of law or may make such other order (including an order releasing the person from custody, either unconditionally or subject to conditions) as the Court considers appropriate.

(2) The Court is not to make an order under this section for the release of a person from custody unless it is satisfied, on the balance of probabilities, that the safety of the person or any member of the public will not be seriously endangered by the person’s release.

(3) As soon as practicable after the making of an order under this section, the Registrar of the Court is to notify the Tribunal of the terms of the order.

157. I propose to make an order that Mr Tui be detained in a correctional facility or such other place as determined by the Mental Health Review Tribunal until released by due process of law.

orders

158. The Court makes the following orders:

1. Pursuant to s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW), a special verdict of not guilty of the charge of murder by reason of mental illness is returned.

2. Pursuant to s 39 of the Mental Health (Forensic Provisions) Act 1990 (NSW), James Vaa Tui is to be detained in a correctional facility or at such other place as determined by the Mental Health Review Tribunal until released by due process of law.

3. I direct that the Registrar notify the Minister for Health of these orders.

4. I direct that the Registrar notify the Mental Health Review Tribunal of my verdict and of these orders. I also direct that the Registrar provide the Tribunal with a copy of these reasons and my orders and a copy of exhibits S, T, Y, Z, AC, 2, 3, and 6, tendered during the special hearing.

OTHER Matters of significance

159. Before the Court rises I wish to formally record my admiration for the actions of Kareen Norris and Tina Melton on 16 July 2016. These brave women were confronted with an horrific scene on the afternoon of that day when, having heard the sound of a car crash, they ran to assist those involved. Although it is clear from witness testimony that Mr Tui presented to those at the scene as aggressive and dangerous, and he was in the process of viciously assaulting an injured man with a brick used as a weapon, neither woman faltered. Ms Norris took hold of Mr Tui and dragged him back from Mr Falaava, whilst Ms Melton grabbed him, and walked him away from the injured man.

160. Both acted without fear for themselves to protect and aid an injured man. Both are to be commended for their courage and selflessness.

161. I propose to ask the Registrar to forward a copy of this judgment to the Attorney-General, so that some consideration may be given to formal recognition of their heroism.

162. I also wish to acknowledge the magnitude of the loss to Mr Faalava’s family in his death. The Court extends its sympathy to them.

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Decision last updated: 25 October 2018